Prosecution for DUI Blood Test Refusal Statute Unconstitutional

In Birchfield v. North Dakota, the United States Supreme Court held that it is unconstitutional to prosecute an individual for refusing to submit to a warrantless blood test when that person is arrested for DUI. In the consolidated cases before the Court, each of the petitioners had been arrested for DUI. The states in which the petitioners were arrested, North Dakota and Minnesota, each had a DUI “refusal statute.”

A “refusal statute” makes it a criminal offense for a person to refuse to submit to a blood alcohol content (BAC) testing when they are being investigated for DUI. The testing can be in the form of blood, breath, or urine tests. The Court held that such “refusal statutes” for blood tests were unconstitutional under the 4th Amendment without a warrant. The Court reasoned that a blood test is intrusive and would reveal other information, including biological information. However, the Court distinguished between blood and breath tests in its holding. The Court ruled that a refusal statute making it a criminal offense to refuse to take a breath test without a warrant is constitutional. The Court reasoned that a breath test did not involve the same level of bodily intrusion as a blood test.

Many states, Illinois included, have “implied consent” laws that require people to submit to BAC testing if they are under investigation or arrest for a DUI. However, only a small number of states attach criminal penalties to the implied consent laws (so-called “refusal statutes”). In most states, including Illinois, the penalties for “implied consent” laws are administrative only. For example, under Illinois implied consent laws, if a person refuses to submit to a breathalyzer test when being investigated for a DUI, the Secretary of State can suspend their driving privileges for a period of 12 months (for a 1st time DUI offender). A refusal is not, however, a criminal offense, punishable by jail and/or a fine.

This opinion paves the way for other states to criminalize refusal of a breath test in DUI cases. With the Supreme Court clarifying that criminal penalties are constitutional for mandatory breath tests, states are now clear to stiffen their DUI laws by adding criminal penalties for people who refuse breath tests without fear of convictions being overturned or expensive constitutional litigation.

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